United States v. Galaz-Felix

221 F. App'x 790
Court of Appeals for the Tenth Circuit·Decided April 12, 2007·No. No. 06-4100·Published·Cited by 1 cases

Opinion

ORDER AND JUDGMENT*

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Carlos Armando Galaz-Felix appeals his sentence of 360 months’ imprisonment followed by ten years’ supervised release resulting from his conviction on counts involving violations of controlled substances, immigration, and firearms laws. Mr. Galaz-Felix argues that the recommended Guidelines sentence was improperly calculated by the [792] district court because there was insufficient evidence to justify: (1) its determination of the quantity of drugs involved, (2) his leadership role in the conspiracy, (3) his possession of a firearm in connection with the conspiracy, and (4) his obstruction of justice. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

Background

I. Procedural History

On May 3, 2003 a grand jury returned a thirteen-count indictment charging Mr. Galaz-Felix and thirteen others with various violations of the controlled substances, immigration, and firearms laws of the United States. Mr. Galaz-Felix was specifically charged with conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1), possession of a firearm by an illegal alien in violation of 18 U.S.C. § 922(g)(5) (Count 8), fraudulent use of a visa in violation of 18 U.S.C. § 1546 (Count 9), and unlawful reentry by a deported alien in violation of 8 U.S.C. § 1326 (Count 11). ApltApp. at 104-16. The government dismissed Count 9 prior to trial, and Mr. Galaz-Felix was subsequently convicted by a jury on Counts 1, 8, and 11.

The district court sentenced Mr. GalazFelix to life imprisonment. Id. at 118. Mr. Galaz-Felix appealed, alleging three points of error: (1) that the district court should have suppressed certain evidence seized from his house, (2) that the district court improperly admitted drug ledgers into evidence pursuant to Fed.R.Evid. 801(d)(2), and (3) that the district court improperly enhanced his sentence based on judge-found facts and applied the Sentencing Guidelines in a mandatory fashion. See United States v. Galaz-Felix, 160 Fed.Appx. 787 (10th Cir.2005). We affirmed the district court’s denial of the motion to suppress and its admission of the drug ledgers, see id. at 789-90, but we remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)1, which was handed down while the appeal was pending.

The jury found Mr. Galaz-Felix guilty of conspiring to distribute 500 grams or more of methamphetamine. This offense has a base offense level of 32 under the Guidelines, assuming Mr. Galaz-Felix conspired to distribute only the minimum 500 grams of methamphetamine. See U.S.S.G. § 2Dl.l(e)(4). At the original sentencing, however, the district court, adopting the recommendation of the Presentence Investigation Report (PSR), determined that the conspiracy actually involved an amount of drugs equivalent to 441,179.2 kilograms of marijuana,1 2 which resulted in a base offense level of 38. See id. § 2D1.1(c)(1). The district court also adopted the PSR’s recommendation of a four-level enhancement for Mr. Galaz-Felix’s leadership role in the conspiracy, see id. § 3Bl.l(a), a [793] two-level enhancement for his possession of a firearm in connection with the offense, see id. § 2Dl.l(b)(l), and a two-level enhancement for obstruction of justice, stemming from Mr. Galaz-Felix’s testimony at the hearing on the motion to suppress, see id. § 3C1.1. These enhancements raised Mr. Galaz-Felix’s offense level from 38 to 46. Given that Mr. Galaz-Felix’s criminal history was a category II, the resulting Guidelines recommendation was a sentence of life imprisonment, which the district court imposed.

On remand, the district court reviewed the sentencing record and found the same quantity of marijuana equivalent, the same enhancements, and the same Guidelines recommendation of life imprisonment. After considering the factors in 18 U.S.C. § 3553(a), the district court sentenced Mr. Galaz-Felix to serve 360 months’ imprisonment followed by ten years’ supervised release. In this second appeal, Mr. GalazFelix challenges the factual basis supporting the district court’s drug quantity determination and the three enhancements.

II. The Conspiracy

Mr. Galaz-Felix arrived in the Ogden, Utah area in December, 2002.3 Shortly thereafter, he was observed at an Ogden apartment at 1095 16th Street, which was rented by co-defendant Julio Lopez and occupied by co-defendants Israel GomezAstorga and Juan Ulvado-Tapia. In December 2002, the apartment’s owner, Michael Hurst, visited the apartment and was greeted by Mr. Galaz-Felix, who gave Mr. Hurst a small amount of crystal methamphetamine. On January 3, 2003, Mr. Galaz-Felix rented his own house at 3464 Grant Avenue in Ogden.

On January 8, 2003, a consent search was conducted on the apartment at 1095 16th Street by officers of the Weber-Morgan Narcotics Strike Force. During the search, officers found approximately three pounds of crystal methamphetamine and numerous documents pertaining to co-defendants Mr. Lopez, Mr. Gomez-Astorga, and Mr. Ulvado-Tapia. In a recorded phone call on January 14, 2003, between Mr. Gomez-Astorga (who was jailed) and Mr. Lopez, Mr. Gomez-Astorga complained that Mr. Galaz-Felix was not doing enough to help him.

During the course of surveillance and wiretaps conducted on the phones of co-defendants Jose Aparicio and Dean Ramirez during February and March 2003, officers became aware of Mr. Galaz-Felix’s involvement in certain drug offenses they were investigating. For example, on March 5, 2003, officers intercepted a phone call between Mr. Aparicio and Mr. GalazFelix, in which Mr. Galaz-Felix advised Mr. Aparico that a supply of drugs had arrived from his brother, a fugitive co-defendant named Esteban Galaz-Felix (aka “Genaro”), that Mr. Ramirez had part of the shipment, and that Mr. Aparicio should not let Mr. Ramirez tell him otherwise. On March 29, 2003, officers intercepted a call between Mr. Ramirez and Mr. Lopez, in which both complained that Mr. Galaz-Felix was aggressively collecting money from them.

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United States v. Galaz-Felix, 221 F. App'x 790 (10th Cir. 2007).

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